Scottish Court of Session Decisions

Lieut.-Colonel George Logan Home was heir of entail in possession of the estates of Edrom and Broomhouse at the date of his death, which took place on28th June 1870. He succeeded to the Edrom estate under the name of George Logan of Edrom by virtue of deed of entail granted by his grandfather dated 3d August 1802, and recorded in the Register of Taillies the 4th July 1818. He afterwards succeeded to the Broomhouse estate on the death of his maternal uncle Lieut.-General (formerly Colonel) James Home of Broomhouse, who died without issue in 1849, under a deed of taillie dated 16th February 1830. By this deed the lands and estate of Broomhouse were conveyed “with and under this condition, as it is hereby expressly provided, that the heirs-male of my body, and the whole other heirs of tailzie above mentioned, shall be obliged constantly to use, bear, and retain the surname of Home, and arms and designation of Home of Broomhouse, and none other, in all time after their succession or attaining possession of the said estate, but with power to the heirs-male of my own body, and the other heirs-male of tailzie above mentioned, to conjoin any other arms therewith but no other surname and in case any of my heirs-male of tailzie have already succeeded or shall succeed to another estate where they shall be obliged by the entail thereof to assume another name and designation than ‘Home of Broomhouse,’ then and in that case he or they shall forfeit, amit, and lose all right, title, and interest which they can have to my lands and estate, and shall be holden and obliged immediately thereupon to denude themselves of my said lands and estate hereby disponed, and to convey and dispone the same habili modo to the next heir-male called to the succession of the said lands and estate by these presents, unless they choose to relinquish the said other estate and continue ‘Home of Broomhouse,’ which they are at liberty to do, in their option; excepting always in the cases of titles of honour conferred by the King's Majesty on any of my said heirs-male of tailzie, which they shall be at liberty to use and conjoin with the said name and designation of ‘Home of Broomhouse;’ and with and under this further condition, that in case any of the heirs-male of my body, or of the other heirs-male of tailzie above mentioned, have already succeeded or shall succeed as heir to any other heritable estate than the lands and others above disponed, of the annual value of £300 sterling or upwards, then, and so often as the same shall happen, such heir-male of tailzie so succeeding shall forfeit, amit, and lose all right, title, and interest in and to my said lands and estate above described, and the same shall fall, accresce, and devolve to the next heir-male hereby called to the succession thereof, in the same manner as if the heir-male succeeding as aforesaid to such other estate had been naturally dead: Declaring, nevertheless, that this irritancy shall not be incurred if the heir-male who has already succeeded or so succeeding to another heritable estate of the value above mentioned shall renounce and relinquish the same within a year and day after his succession to and possession of the same jointly with my aforesaid lands and estate hereby disponed.”

By a separate deed of alteration of this deed of entail of Broomhouse executed by the entailer Lieut.-General James Home, dated 23d January 1846, and recorded in the Register of Tailzies of the same date as the deed of entail was recorded therein, viz., 9th March 1850, so much of the entail as prevented and prohibited Lieut.-Colonel George Logan Home (then George Logan), the entailer's nephew, from holding and enjoying the estate of Broomhouse along with his own estate of Edrom was revoked, recalled, and withdrawn, but there was a provision that in case Lieut.-Colonel George Logan Home should have more than one son, the estate of Broomhouse should not be divided, but should descend and devolve whole and entire as it then stood to one proprietor. This prohibition was fenced with an irritant clause; and the granter confirmed and approved the deed of entail so far as not altered. Accordingly Lieut.-Colonel George Logan Home of Edrom assumed the additional surname of “Home,” and in accordance with the relaxation in his favour of the provisions of the entail of Broomhouse contained in the deed of revocation and alteration he held the two estates of Broomhouse and Edrom till his death on 28th June 1870.

He was survived by four sons. The eldest, William James Logan Home, succeeded him as heir of entail and was infeft on both estates, but in compliance with the entail of Broomhouse he conveyed the estate of Edrom by disposition and deed of denuding, dated 3d February 1873, to his next younger brother George, who was infeft on 6th March. At the same time William dropped the surname of “Logan,” and was thereafter known as “William James Home of Broomhouse;” and George, dropping the surname of “Home,” thereafter bore the surname of “Logan,” as required

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by the Edrom entail, and was known as “George John Ninian Logan of Edrom.”

William James Home of Broomhouse died unmarried in India on 29th September 1875, when the succession to the estate of Broomhouse devolved on George John Ninian Logan of Edrom, who thereupon dropped the surname of Logan and assumed that of Home of Broomhouse, and continued to possess both estates for some months thereafter. On attaining majority he presented a petition to the Court for authority to record an instrument of disentail of the estate of Broomhouse. But the Court held that the petition could not proceed until the petitioner had judicially declared his election of the estate of Broomhouse and his surrender of the estate of Edrom— Home v. Home, March 15, 1876, supra, vol. xiii. 376, 3 R. 591. In consequence he executed a deed of denuding of the estate of Edrom in favour of Ferdinand Cospatrick Logan, dated 27th March 1876, as being the next heir of tailzie entitled to succeed after him to the lands of Edrom. Thereafter, authority being given, he recorded his deed of disentail of the estate of Broomhouse in the Register of Entails on 6th June 1876. On the 12th June 1876 he disponed to himself and his heirs and assignees whomsoever the lands of Broomhouse, and recorded the disposition on the 15th June 1876, and he held the estate thereafter in fee-simple as George John Ninian Logan Home of Broomhouse. In 1878 he married Miss Eva Seton, and on 31st July 1879 there was born of the marriage a daughter Margaret Annie Logan Home. The present action was raised by him as tutor-at-law to his daughter against Ferdinand Cospatrick Logan and his curator, to have it declared that his daughter Margaret Annie Logan was a nearer heir of entail to the estate of Edrom than the defender, who ought to be ordained to denude himself of that estate in her favour.

He pleaded—“(1) The said Margaret Annie Logan Home being a nearer heir of tailzie and provision to the estate of Edrom than the principal defender, he is bound, with concurrence of his curator, to execute a deed or deeds of denudation and conveyance thereof in her favour, with and under the whole burdens, conditions, provisions, restrictions, limitations, exceptions, reservations, declarations, and clauses irritant and resolutive, contained in the disposition and deed of entail of said estate; and the other defender is bound, as such curator, to consent to the deed or deeds necessary to carry out the said denudation and conveyance.”

The defenders pleaded—“(1) The pursuer having elected to take the estate of Broomhouse, in the exercise of the option conferred on him by the entailer, and having denuded himself of the estate of Edrom, the defender became entitled to Edrom to the same effect as if the pursuer had been naturally dead, and neither the pursuer nor his heirs have now any right or title thereto. (2) On a sound construction of the Broomhouse entail and relative deed of revocation and alteration, the entailer's heir and the family of that heir who are provided for by taking Broomhouse cannot at the same time hold the estate of Edrom. (4) The entailer of Broomhouse having, according to the true import of the deed, declared his intention that Broomhouse and Edrom should not be held by one and the same heir or stirps, the pursuer cannot approbate the entailer's deed in his favour while reprobating the condition annexed. (5) The pursuer is barred personali exceptione, whether on behalf of himself or his heirs, from repudiating a condition-precedent to his obtaining possession of Broomhouse under the entail.”

The Lord Ordinary ( Rutherfurd-Clark) found in terms of the declaratory conclusion of the summons. He subjoined this note:—

“ Note.—The late Colonel Logan Home died in June 1870. He was the heir in possession of two entailed estates, viz., Broomhouse and Edrom. These estates were held under two separate entails executed by different entailers.

Colonel Home left two sons, the pursuer and the defender. The pursuer was the heir of entail entitled to succeed to both entailed estates. But a clause in the Broomhouse entail, which was not applicable to his father, debarred him from holding Broomhouse along with Edrom. It declares that if any of the heirs of entail shall succeed to another estate of the annual value of £300 they shall forfeit the estate of Broomhouse, but that the irritancy shall not be incurred if the heir ‘shall renounce the same.’

The pursuer elected to take the estate of Broomhouse, and by disposition and deed of denuding conveyed the estate of Edrom to the defender and the other heirs of tailzie called under the Edrom entail. After the pursuer the defender was then the nearest heir in existence under that entail.

But a daughter was born to the pursuer on 31st July 1879. He sues the present action as her tutor-at-law. She is admittedly a nearer heir of entail under the Edrom entail than her uncle, the defender. The question is whether as such she is entitled to dispossess the defender of that estate?

It appears to the Lord Ordinary that this question must be decided by reference to the Edrom entail alone. The conditions of the Broomhouse entail cannot affect the rights of the heirs under the Edrom entail. That being so, the right of the pursuer's daughter as the nearer heir is preferable to that of the defender. According to the ordinary rule applicable to estates held under a destination, the defender is bound to surrender the estate to a nearer heir who has come into existence since his own succession.

But it was argued that the defender held the estate under a disposition and deed of denuding executed by the pursuer, and had thereby a better title. The Lord Ordinary cannot see that he has. The pursuer could not grant any deed to the prejudice of the heirs of entail. The deed of denuding merely propelled the succession to the person who was the nearest heir for the time. If it did more it was a contravention of the entail.

It was urged that the defender is entitled to possess the estate as in right of the pursuer. But the pursuer did not do more than relinquish his own right of succession, and did not confer any right on the defender. Indeed he could not do so without taking up the estate of Edrom, and thereby incurring a forfeiture under the Broomhouse entail, and if he did not take up Edrom the succession to that estate must be regulated by the entail alone.

The Lord Ordinary has given decree of declarator only. He thought it better not to go further until it be seen whether the view he has taken of the case is affirmed by the Court.”

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The defenders reclaimed, and argued—(1) By the deed of 1876 the pursuer effectually denuded himself and his whole stirps of the estate of Edrom. As regards the obligation incumbent on the heir in possession to denude in favour of a nearer heir emerging, this was a case where he possessed in virtue of an express conveyance, and not a case where the heir had succeeded by favour of the law— Mountstuart v. Mackenzie, Nov. 13, 1707, M. 14,903; M'Kinnon v. M'Kinnon, June 16, 1756, M. 6566; Campbell v. Campbell (Boquhan Entail), July 10, 1868, 6 Macph. 1035. (2) The infant pursuer had no title to sue, and her father was barred personali exceptione from exercising his right of challenge on the ground that his renunciation of Edrom in 1876 formed an onerous consideration which enabled him to obtain possession of Broomhouse.

At advising—